1. Provisions & Implications of Employment Law Lecture Notes By Upenyu Sakarombe Email: upenyus@gmail.com Lecturer: U. Sakarombe

2.   Lewis, D. and Sargeant, M., 2009. Essential of Employment Law. 10 th ed. London: Chartered Institute of Personnel and Development.  Nairns, J., 2011. Employment Law for Business Students. 4 th ed. Harlow: Pearson Longman.  Zimbabwe Labour Act of 2004. Lecturer: Sire U. Sakarombe Referral Text

3.  Sources of Employment law  Legislation - made through the Acts of Parliament and overrides Common law by addressing its deficiencies. It includes the Constitution, principal legislation, statutory instruments, statutory CBA, International treaties and conventions.  Common law -legal rules not contained in legislation and it uses the eyes of the ‘common’ person to decide. Derived from the Roman-Dutch law and the Cape of Good Hope of RSA, 1981. Also known as General law.  Legal writings - are persuasive. Labour Gurus include Otto Kahn Freund the pluralist, George Makings, M. Gwisai, L. Madhuku etc.  The Constitution as a source of labour Law.Is the supreme law of the land and key in Labour law. (herein lies our sovereignty)  Judicial Precedent/case law - based on past/ settled cases. Lecturer: Sire U. Sakarombe Introduction

4.  CONTRACT OF EMPLOYMENT Matthew 20:1-16 and Leviticus 19:13  -every person working for another and receiving remuneration in return is ‘deemed to be under a contract of employment’.  -creates a legally enforceable employment relationship, the core of labour relations.  -is the cornerstone of labour law establishing obligations for the contracting parties.  -is a lawfully binding agreement between two parties who possess the capacity to contract.  Employee -any person who performs work/services of another person for remuneration/reward on such terms and conditions as agreed upon by the parties.  Employer -any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes the manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed, judicial manager, liquidator, executor and curator. Lecturer: Sire U. Sakarombe Employment Law

5.  Features essential for a contract of employment to exist  -there must be a voluntary agreement between parties otherwise it may become invalid (if made under duress/ misrepresentation/undue influence).  -is a bipartite relationship-the employee as a natural person (a human being), the employer a juristic person (legal persona).  -employee renders personal service and has duties of subordination and good faith to the employer.  -the employer pays a wage/ remuneration.  -there is an indefinite or specified period of contract. Lecturer: Sire U. Sakarombe Employment Law

6.  Health and Safety Employers have a legal duty to protect the health and safety of employees and others by providing:  Risk assessments  Personal protective equipment (PPE) free of charge  Safe procedures in the event of fire or other emergencies  Training in safe ways of working  Adequate welfare and first aid facilities  Safe equipment  Reporting and monitoring All employees have a duty to: Safeguard their own and others’ health and safety Use PPE as instructed Follow instructions and training in safe ways of working Report risks and hazards Use the machinery and equipment correctly Report accidents, illnesses and work-related diseases as required Co-operate with the employer over health and safety issues. Employment Law Lecturer: Sire U. Sakarombe

7.  Employment Law Employment Contracts  A contract of employment exists as soon as an applicant accepts your job offer This applies regardless of whether the offer is writing. The contract can be conditional upon an employee providing you with evidence of suitability, such as adequate references. You must provide every employee (full-time or part-time) with a written statement.  You can provide a single written statement covering all the terms.  Alternatively, you can provide a 'principal statement', together with further instalments covering the other specified terms and conditions.  The statement must cover all the specified terms and conditions, even if they do not apply Every contract includes implied terms, whether they are written down or not.  In addition, no contract can override certain statutory rights. Employers have a duty to provide employees with informati  on concerning their rights. There are legal restrictions on working hours Entitlement to annual holiday must be set out in the written statement In general, you are not entitled to make deductions from an employee's pay

8.  Terms and Conditions They must include the following:  Job title or nature of the work,  Date of commencement of employment,  If the contract is temporary, the expected duration of employment,  If the contract is for a fixed-term, the date on which the contract expires,  The rate of pay or method of calculating pay,  The right to a written statement of the average hourly rate of pay for any reference period upon request,  Whether pay is weekly, monthly or otherwise,  Terms or conditions relating to hours of work, including overtime,  Terms or conditions relating to paid leave (other than paid sick leave),  Terms or conditions relating to incapacity for work due to sickness or injury,  Terms or conditions relating to pensions and pension schemes,  Periods of Notice or method for determining periods of notice,  A reference to any collective agreements which affect the terms of employment. Employment Law Lecturer: Sire U. Sakarombe

9.  Breach of Contract  Occurs when one or both parties violet a term or terms of the contract. It comes in any of the following forms:  (a) Mal-performance – this is when a party fails to perform either at all or in time or correctly.  (b) Cancellation – occurs when one party terminates a contract prematurely.  (c) Repudiation – this is when one party behaves in a way that makes the other party believe that he is going to terminate the contract. It is sometimes referred to as anticipatory breach.  (d) Mora debitoris – this is when the debtor fails to perform his obligations in a contract. Remedies for breach  This refers to the relief given to the aggrieved party. The remedies include:  (1) Specific performance – this is when the innocent party will be asking the court to order the guilty party to fulfill his contractual obligations.  (2) Interdict – is an order either restraining a person from doing a particular act or compelling a person to do a specific act.  (3) Cancellation – this is when a party is allowed to set aside a contract. Unlike rescission of contract where parties are restored to the status quo ante, cancellation sees parties being placed to the position they would have been had the contract not been breached.  (4) Damages – they are only claimed for financial loss. Lecturer: Sire U. Sakarombe Employment Law

10.  Pay, Minimum Wage  this is based on the common law principle of “no work no pay.”  It is in the interests of justice fairness and equity to pay a person who has worked for you.  Search for minimum wage set by the government at mywage.org  Pay Slips: All employees are entitled to receive a pay slip with every payment of wages. This pay slip should show the gross wage (wage before deductions) and the nature and amount of each deduction.  Deductions: An employer is allowed to make the following deductions from an employee’s wage:  Any deduction required or authorised by law (e.g. PAYE),  Any deduction authorised by the term of an employee’s contract (e.g. pension contributions, or particular till shortages, AIDS levy),  Any deduction agreed to in writing in advance by the employee (e.g. health insurance subscription, sports and social club membership subscription). Employment Law Lecturer: Sire U. Sakarombe

11.  Maternity/ Paternity Leave  maternity leave shall be granted in terms of this section for a period of ninety-eight days on full pay to a female employee who has served for at least one year.  On production of a certificate signed by a registered medical practitioner or State Registered Nurse certifying that she is pregnant, a female employee may proceed on maternity leave not earlier than the forty-fifth day and not later than delivery.  A female employee shall be entitled to be granted a maximum of three periods of maternity leave with respect to her total service to any one employer during which she shall be paid her full salary:  Provided that paid maternity leave shall be granted only once during any period of twenty-four months calculated from the day any previous maternity leave was granted.  Paternity leave – is usually given to newly weds. It is also a privilege. Employment Law Lecturer: Sire U. Sakarombe

12.  Child Labour Child labour is prohibited except for the following cases Employment of young persons [Chapter 28:1]  No employer shall employ any person in any occupation— (a) as an apprentice who is under the age of thirteen years; (b) otherwise than as an apprentice who is under the age of fifteen years.  any contract of apprenticeship with an apprentice between the ages of thirteen and fifteen years which was entered into without the assistance of the apprentice’s guardian, shall be void and unenforceable against the person purportedly employed under such contract,  A person under the age of fifteen years but not younger than thirteen years may— perform work at a school or technical or vocational institution that is carried out as an integral part of a course of training or technical or vocational education for which the school or institution is primarily responsible;  No employer shall cause any person under the age of eighteen years to perform any work which is likely to jeopardise that person’s health, safety or morals, which work shall include but not be limited to work involving such activities as may be prescribed. Employment Law Lecturer: Sire U. Sakarombe

13.  Flexible Working  Flexitime is a form of employment which refers to the work cycle.  The emphasis is on the employee having the freedom to choose their own working hours.  It is not a part-time contract of employment.  The employment can be permanent, temporary or a seasonal work contract performed only at certain times of the year Lecturer: Sire U. Sakarombe Employment Law

14.  Working Hours  In Zimbabwe, every Collective Bargain Agreement provides for minimum hours of work.  The model Collective Bargaining Agreement recommends a minimum of eight hours per day, subject to the nature of the work, and 40 hours per week.  This could be up to a maximum of ten hours a day.  No employee shall be required to work continuously for more than five hours without being given a paid rest period of not less than an aggregate of one hour.  Breastfeeding mothers shall be afforded two hours each day for breastfeeding for a period of 12 months, and one hour thereafter for a period of six months.  For breakdown, continuous work, emergency and for every hour or part thereof worked by an employee in excess of his/her ordinary hours of work, the employer shall pay the employee not less than one and a half times his/her ordinary rate.  For every hour or part thereof worked by an employee between midnight on Saturday and midnight on Sunday, or midnight of the day before their day off, the employer shall pay the employee not less than twice their ordinary rate. Lecturer: Sire U. Sakarombe Employment Law

15.  Sickness and Absence  This policy outlines principles of good practice aimed at preventing ill health, the effective management of sickness absence when it occurs and the rehabilitation of staff where reasonable, including taking all reasonable measures to support and retain those with a disability  This guidance outlines employees entitlement to sick pay Employment Law Lecturer: Sire U. Sakarombe

16.  Rest Breaks  Under Section 14 C, employees are entitled to no less than 24 continuous hours of rest each week, either on the same day of every week or another agreed date.  Every employee shall be granted leave of absence during every public holiday as gazetted under a notice in terms of the Public Holidays and Prohibition of Business Act, (Chapter 10:21).  Workers are entitled to 24 consecutive hours of rest per week. Weekly rest days can either be same every week or as agreed by employer and employee.  No provision could be located in law regarding rest breaks and daily rest period Lecturer: Sire U. Sakarombe Employment Law

17.  Business Transfers and Takeovers (TUPE)  TUPE regulations mean employees shouldn’t lose their existing employment rights. Before the transfer  If the employer knows an employee is transferring to another company, they can’t normally change the employee’s terms and conditions to make them the same as those of the new company - even if the employee agrees to the change. After the transfer  The new employer can’t change an employee’s terms and conditions if the reason is the transfer itself.  The new employer can change an employee’s terms and conditions if the reason is an ‘economic, technical or organisational reason’ (ETO) involving changes in the workforce or workplace, such as a result of redundancies or a move from a managerial to a non- managerial position. The employee needs to agree to this change.  ‘Economic’ reasons are to do with how the company is performing.  ‘Technical’ reasons are to do with the equipment or processes the company uses.  ‘Organisational’ reasons are to do with the structure of the company.  Employers can make changes if the employee’s existing contract allows for those changes. But the transfer itself can’t be the reason for change Employment Law Lecturer: Sire U. Sakarombe

18.  Work Permits  A work permit is the permission to take a job within a foreign country.job  It may also be a permit given to minors allowing them to work legally under child labor laws.child labor  Within an industry, a work permit may be required to execute certain functions within a factory outside normal operational tasks (such as maintenance tasks) — in some places they might be called Permit to Work (PTW).industry Employment Law Lecturer: Sire U. Sakarombe

19.   Labour Act prohibits discrimination in wages on the basis of sex. Labour Code also prohibits discrimination against a current or prospective employee on grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status, any disability in relation to the determination or allocation of wages and salaries.  Constitution supports the principle of equal pay to male and female employees for work of equal value. Constitution also supports the right to equal pay for equal work.  In accordance with the Constitution, there cannot be any discrimination on the ground of nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic/social status.  Labour Act 1985 requires that employers or other persons can't discriminate (in the employment related matters) on the following grounds: "Race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status or on the basis of disability". Equal Choice of Profession  Women can work in the same industries as no restrictive provisions could be located in the law.  In accordance with the Constitution, every person has the right to choose and carry on any profession, trade or occupation, but the practice of a profession, trade or occupation may be regulated by law. Equal Opportunities and Diversity Lecturer: Sire U. Sakarombe

20.  Importance of Equal Opportunity Policy to the employee  First, EOP helps establish a baseline for acceptable behavior, which is important considering the vast array of lifestyles, values, and attitudes individuals have.  Secondly, EOP practices help individuals feel they are being treated fairly and equally, which can increase an individual’s level of commitment, satisfaction, and loyalty to their employer.  A third reason involves a person’s mental mindset and sense of personal worth and well-being. An individual that feels confident in all situations, even ones where he or she is a minority, will help the individual’s sense of overall worth and ability to comfortably contribute. Benefits to the Employer  First, an organization that can confidently state that they practice equal employment has a greater advantage to attracting qualified and dedicated candidates.  Secondly, an organization that is EOP compliant decreases the chances of facing a discrimination or wrongful discharge lawsuit.  Finally, an organization that ensures equal employment for all increases the chances that it will have a diverse workforce, which has many positive implications for teams, departments, and overall organizational productivity and creativity. Lecturer: Sire U. Sakarombe Equal Opportunities and Diversity

21.  Representativeness of the Workforce  Employee representatives may be chosen by their fellow employees or appointed by management. The roles of employee representatives vary but most:  receive information from and give information to management  pass on information more widely within the workforce  are consulted by management over certain workplace matters  participating in negotiation and grievance procedures as provided for in employer/trade union agreements or in accordance with recognised custom and practice in the undertaking or establishment in which they work  Employee representatives operate mainly in businesses that:  do not recognise any trade union for collective bargaining purposes  recognise a trade union in respect of some, but not all, of their employees  In some organisations non-union representatives may take on an additional role of accompanying workers at grievance and disciplinary hearings, or advising them before hand.  In taking on this role representatives should be aware that it can involve considerations of subsequent legal action in an employment tribunal.  There are, as yet, no agreed programmes for the training nor means of validating non-union representatives who carry out this role.  Representatives often find their role in accompanying a worker is especially valuable when it precedes a formal hearing.  This can sometimes enable a matter to be resolved prior to the initiation of formal proceedings including applications to employment tribunals.  Representatives undertaking this work may have to appear as witnesses before outside appeal bodies or employment tribunals.  Representatives should be aware of the value of mediation in handling some grievance issues.  It may be appropriate, with the employer’s agreement, for representatives often involved in individual grievance and disciplinary cases to train to become a qualified mediator.  Representatives engaged in grievance and disciplinary cases will need access to a confidential space to meet the worker involved prior to, a hearing and afterwards. Equal Opportunities and Diversity Lecturer: Sire U. Sakarombe

22.  Concept and Use of Quotas  Quotas and other affirmative action policies aim to improve equality of opportunity and increase diversity by addressing the underrepresentation of minority groups in a range of different domains, such as politics, higher education and management.  Quotas and other affirmative/ positive action policies aim to address the under-representation of a negatively stereotyped minority group in a specific context.  Therefore, the most important question is whether or not affirmative action initiatives are effective in reaching this goal. Equal Opportunities and Diversity Lecturer: Sire U. Sakarombe

23.  Positive Discrimination  Policies and practices which favour groups (mainly ethnic groups and women) who have historically experienced disadvantages (usually in the fields of employment and education).  It is argued by advocates of positive discrimination that, given the existing structure of inequalities and stereotypes, the policy is necessary in order to create equality of opportunities with historically privileged groups. inequalitiesstereotypes Equal Opportunities and Diversity Lecturer: Sire U. Sakarombe

24.  Marketplace Considerations  There has been research suggesting that "competitive markets will tend to drive out such discrimination" since employers or institutions which hire based on arbitrary criteria will be weaker as a result and not perform as well as firms which embrace equality of opportunity.  Fair opportunity practices include measures taken by an organization to ensure fairness in the employment process. A basic definition of equality is the idea of equal treatment and respect.  Diversity in the workplace presents several considerations.  Employees need to get used to others who behave or look differently from them or what they’re used to.  Once differences are accepted, coordinating the varying work styles is essential. Learning to communicate across cultural and language differences can be a large consideration.  Promoting positive communication skills and encouraging employees to be open to new ideas are important.  Flexibility and willingness to embrace different and/or unfamiliar approaches to business helps productivity.  Businesses that fail to foster inclusive workplaces see higher turnover rates than businesses that value a diverse workforce, because they foster a hostile work environment and employees leave.  The failure to retain qualified employees results in avoidable turnover-related costs at the expense of a company’s profits.  Having a diverse and discrimination-free work environment helps businesses reduce or altogether avoid these costs. Finally, adapting to change can be a challenge for workplace diversity. Lecturer: Sire U. Sakarombe Equal Opportunities and Diversity

25.  Definition and Scope  Ethical management refers to management practices that comply with market ethics while fulfilling the ethical responsibilities expected of us based on social norms.  Ethical management acknowledges compliance with market and social ethics as a basic responsibility of a corporation, guided by the principle of adherence to corporate ethics.  In other words, ethical management refers to management that not only complies with laws and institutions but also fulfills the "social responsibility" of a corporation Lecturer: Sire U. Sakarombe Ethical Management

26.  Fair Trade, Sustainability and Corporate Social Responsibility Fair trade  is a social movement whose stated goal is to help producers in developing countries achieve better trading conditions and to promote sustainable farming.  Members of the movement advocate the payment of higher prices to exporters, as well as improved social and environmental standards.  It is a trading partnership which aims at sustainable development for excluded and disadvantaged producers.  It seeks to do this by providing better trading conditions, by awareness-raising and by campaigning.  The basic mechanism underpinning FT is straightforward: products meeting FT standards are labelled and marketed through a specific supply chain which is subject to certification. Corporate social responsibility  is the continuing commitment by business to contribute to economic development while improving the quality of life of the workforce and their families as well as of the community and society at large.  The implementation of a CSR initiative within the agenda of a firm is usually managed as a three steps process.  The identification of the stakeholders (or claimants) intended to be the beneficiaries of a CSR program and the corresponding issues that are addressed is the first step towards achieving social responsibility.  Either stakeholders themselves lay the specific claims on a dialogue basis, or public pressure drives the firm to identify social concerns that must be tackled by means of CSR participation. Sustainability  A process of change in which the exploitation of resources, the direction of investments, the orientation of technological development and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations Lecturer: Sire U. Sakarombe Ethical Management

27.  Negative Effects of Globalisation Exploitation Child labour Social and Environmental Damage Carbon Footprints Lecturer: Sire U. Sakarombe Ethical Management

28.  Work-life Balance and the Well-being of the Workforce  corporations are the entry point to creating a healthier world, and the benefits for the company are plenty.  Workplace well-being aligns nicely with many organizational goals, like employee engagement, talent acquisition, and rock star employee retention.  Feeling well means we take fewer sick days, foster better relationships with colleagues and clients, and have the mental capacity for complex tasks.  All of that ultimately drives business outcomes the affect the bottom line for the better.  Often we think that well-being is merely exercise or nutrition, but it’s so much more. Well-being is about an alignment of mind and body, and that requires more than an hour at the gym. Lecturer: Sire U. Sakarombe Ethical Management

29.  Ethical Investment  Ethical investment is also known as sustainable investment and socially responsible investment (SRI).  The term describes an investment process that incorporates environmental and social factors when selecting investments, in addition to the objective of achieving a competitive financial return.  Depends on an investor's views; some may choose to eliminate certain industries entirely (such as gambling, alcohol, or firearms, also known as sin stocks) or to over-allocate to industries that meet the individual's ethical guidelines.  Socially responsible investors encourage corporate practices that promote environmental stewardship, consumer protection, human rights, and diversity. Some avoid businesses involved in alcohol, tobacco, fast food, gambling, pornography, weapons, contraception/abortifacients/abortion, fossil fuel production or the military.corporateenvironmental stewardshipconsumer protectionhuman rightsdiversityalcoholtobaccofast foodgamblingpornographyweaponscontraceptionabortifacientsabortionfossil fuelmilitary  The term "socially responsible investing" sometimes narrowly refers to practices that seek to avoid harm by screening companies included in an investment portfolio.  However, the term is also used more broadly to include more proactive practices such as impact investing, shareholder advocacy and community investing.impact investingshareholder advocacycommunity investing Ethical Management Lecturer: Sire U. Sakarombe

30.  Implications for HR and Business Processes and Policies e.g. whistleblowing  Whistle-blowers come forward publicly when something illegal or unethical is going on in their organizations after they do not receive an acceptable reply internally when communicating concern.  Whistle-blowers are often ostracized in their companies and face the dilemma of protecting their employer or stepping forward when something inappropriate is going on.  Whistle-blowing can lead to a breakdown of trust.  Companies typically prefer that employees use internal communication systems if they are uncomfortable with activities going on in their departments or the company.  This gives the company a chance to monitor itself internally before the employee decides to go elsewhere.  If trust breaks down between managers and employees, tension and effective working relationships among employees become challenging.  There is need to consider possibility of retaliation Lecturer: Sire U. Sakarombe Ethical Management

31.  Asante Sana Zikomo Matendwa Lecturer: Sire U. Sakarombe Conclusion